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James v Keogh [2008] SASC 273

17 October 2008

Doyle CJ

Certain questions of law have been reserved for consideration by the Full Court, pursuant to s 49 of the Supreme Court Act 1935 (SA) (“the SCA”) and pursuant to r 294 of the Supreme Court Civil Rules 2006. The questions reserved arise from an application by Dr James for an order summarily dismissing an appeal instituted by Mr Keogh. The appeal is brought to the Full Court against a decision by a single Judge of this Court.

The single Judge had allowed an appeal by Dr James against a decision by the Medical Board of South Australia finding Dr James guilty of unprofessional conduct and censuring him for that conduct. The Board’s decision was made on a complaint laid before the Board by Mr Keogh. The single Judge had also dismissed a cross appeal by Mr Keogh against a decision by the Board to dismiss a further complaint by Mr Keogh. By the appeal to the Full Court Mr Keogh seeks to set aside the Judge’s decision, to restore the decision of the Medical Board finding Dr James guilty of unprofessional conduct, to have his cross appeal reinstated and, I assume, to have the cross appeal allowed. Dr James submits that the appeal to the Full Court is incompetent. He argues that the relevant legislation does not allow for an appeal by Mr Keogh to the Full Court in these circumstances.

Background

In 1995 Mr Keogh was found guilty by a jury of the murder of Ms Cheney. Dr James is a forensic pathologist. He gave evidence at Mr Keogh’s trial. Mr Keogh laid two complaints before the Medical Board alleging unprofessional conduct by Dr James in the course of his evidence at Mr Keogh’s trial.

The first complaint is dated 18 November 2004. The complaint alleges that Dr James was guilty of unprofessional conduct in failing in his evidence to disclose certain information relating to bruising allegedly found on Ms Cheney’s leg. The complaint alleges that the non-disclosure made the evidence given by Dr James false and misleading. The Board upheld this complaint.

The second complaint is dated 21 April 2005. It alleges that Dr James gave misleading evidence to the effect that a finding made during the course of the autopsy on Ms Cheney was an indicator of freshwater drowning. The Board dismissed this complaint. The second complaint repeated the allegation that Dr James had been guilty of unprofessional conduct in the circumstances alleged in the first complaint.

Each complaint was laid before the Board under s 54 of the Medical Practitioners Act 1983 (SA) (“the 1983 Act”). The Medical Practice Act 2004 (SA) (“the 2004 Act”) repealed the 1983 Act, with effect from 26 August 2005. Although some provisions of the 2004 Act came into force on 21 April 2005, most of the Act, including the provisions relating to disciplinary proceedings and appeals, came into operation on 26 August 2005.

The Medical Board (as it was called under the 1983 Act) was continued in existence by the 2004 Act as the Medical Board of South Australia. Hereafter I will refer to it as “the Board”, unless it is necessary to indicate that I am referring to the Board for the purposes of the 1983 Act or for the purposes of the 2004 Act. The Board’s decision states that it began to hear the complaints in August 2007. Apparently litigation between the parties caused the Board to wait until then. I assume that before August 2007 the Board inquired into the subject matter of the complaint, to use the expression found in the legislation, at least to the extent of dealing with pre-hearing matters. However, the Court has no information about that.

According to the single Judge, the Board dealt with the complaints as if they had been laid before the Board under the 2004 Act:  James v Keogh [2008] SASC 156; (2008) 101 SASR 42 at [60].  The Judge said that this was wrong, and that the Board should have proceeded under the 1983 Act. However, the Judge said that the differences between the two Acts did not affect the matters that he had to decide. In the appeal to the single Judge the parties were arguing the question of whether the Board was correct in its conclusions on the question of whether Dr James had been guilty of unprofessional conduct. The Board published its decision on 2 April 2008. That same day Dr James filed a Notice of Appeal to this Court against the finding of unprofessional conduct. He sought an order dismissing both complaints.

On 24 April 2008 Mr Keogh filed a Notice of Cross appeal. The Notice of Cross appeal is unsatisfactory in that it does not state the orders sought by Mr Keogh on appeal: see r 288(3) and r 284(2) of the Supreme Court Civil Rules 2006. The notice merely claims “such orders as the court deems appropriate.” However, it appears from the grounds that Mr Keogh was challenging a number of findings favourable to Dr James that the Board made when considering the first complaint, and the Board’s dismissal of the second complaint.

On 13 June 2008 the single Judge published his decision:  James v Keogh [2008] SASC 156. He allowed the appeal by Dr James, set aside the finding of unprofessional conduct, dismissed the cross appeal by Mr Keogh, and varied the decision of the Board by substituting an order that the first complaint and the second complaint be dismissed.

On 3 July 2008 Mr Keogh filed a Notice of Appeal against that decision. This Notice of Appeal is also unsatisfactory, being a mixture of grounds of appeal and arguments in support of the appeal. Mr Keogh in effect seeks an order that his appeal be allowed, that the Judge’s decision setting aside the finding of unprofessional conduct be itself set aside, and that the Board’s finding of unprofessional conduct be restored. He seeks an order setting aside the dismissal of his cross appeal to the single Judge, without indicating what consequential orders he seeks. This then led to an application on 30 July 2008 by Dr James for an order dismissing the appeal as incompetent.

What has now emerged is an argument about whether the 1983 Act or the 2004 Act applied to the Board’s inquiry into the subject matter of the complaints and, in particular, whether rights of appeal from the decision of the Board are regulated by the 1983 Act or by the 2004 Act.

Dr James argues that the 1983 Act regulated and governed the inquiry conducted by the Board, and rights of appeal from the decision of the Board. On that premise he argues that the cross appeal by Mr Keogh was incompetent, because the 1983 Act gave Mr Keogh no right to appeal or cross appeal against the Board’s decision. This issue was not raised before the single Judge, who considered the cross appeal on its merits. Dr James also argues that Mr Keogh’s appeal against the decision by the single Judge is incompetent. The argument is, in brief, that the 1983 Act gives Mr Keogh no right of appeal against the decision of the Board. He argues that the failure to so provide indicates or implies that the decision of the single Judge is “final and without appeal” at the instance of Mr Keogh for the purposes of s 50(3)(c) of the SCA. Accordingly, he argues, Mr Keogh cannot invoke the right of appeal conferred by s 50(1)(a) of the SCA. Section 50 of the SCA relevantly provides:

50 – Appeals

(1) Subject to this section ––

(a) an appeal lies to the Full Court against a judgment of the court constituted of a single judge; and …

(3) No appeal lies against ––

(a) an order allowing an extension of time to appeal from a judgement; or

(b) an order giving unconditional permission to defend an action; or

(c) a judgment that is, by statute, under the rules, or by agreement of the parties, final and without appeal.

As I have indicated, Mr Keogh invokes the right of appeal conferred by s 50(1)(a), and Dr James argues that the effect of the provisions of the 1983 Act is to make the judgment of the single Judge one that is “final and without appeal” at the instance of Mr Keogh.

Although the single Judge said that the 1983 Act regulated the proceedings before the Board, the outcome of the issues argued before him was not affected by that decision. I gather that the matter did not receive any close attention before the single Judge. Dr James did not argue that the cross appeal against the Board’s decision was incompetent. That is the background to the Case Stated. The questions reserved for the consideration of the Full Court are the following:

13.1  Were the complaints of unprofessional conduct made on 18 November 2004 and 21 April 2005 by the present Appellant under the Medical Practitioners Act 1983 (now repealed) to be heard and determined by the Medical Board of South Australia in accordance with the provisions of that Act or the provisions of the Medical Practice Act 2004?

13.2  Was:

(a) the Appeal;

(b) the Cross appeal heard by the Honourable Justice Debelle governed by the provisions of:

(c) the Medical Practitioners Act 1983 (now repealed); or

(d) the Medical Practice Act 2004?

13.3  Was the purported cross appeal to the Supreme Court by the Appellant from the decision of the Medical Board of South Australia made on 2 April 2008 a competent appeal?;

13.4  Is the judgment of the Honourable Justice Debelle given on 13 June 2008 on:

(a) the Appeal; and

(b) the Cross appeal, final and, at the instance of the Appellant, without appeal within the meaning of section 50(3)(c) of the Supreme Court Act 1935 (SA)?

13.5  Is the present appeal by the Appellant to the Full Court otherwise incompetent?

Competence of the appeal by Mr Keogh to the Full Court

The argument that Mr Keogh’s appeal to the Full Court is incompetent is based on an implication drawn from s 66 of the 1983 Act, which implication is said to exclude the right of appeal that otherwise would be given to Mr Keogh by s 50(1)(a) of the SCA. Section 66 provides for an appeal to the Supreme Court against certain decisions by the Board.

To establish a foundation for this argument, Mr Edwardson QC, counsel for Dr James, had to establish that s 66 of the 1983 Act regulates rights of appeal from the Board’s decision on Mr Keogh’s complaint, despite the repeal of the 1983 Act in August 2005, before the Board made its decision. That led Mr Edwardson to argue that the 1983 Act continued to govern and to regulate the Board’s inquiry into the complaints lodged by Mr Keogh, and the hearing of those complaints, notwithstanding the repeal of the 1983 Act before the hearing in August 2007 and the Board’s decision in April 2008.

If rights of appeal against the Board’s decision were governed by the 2004 Act, Mr Keogh’s appeal to the Full Court is competent. There is nothing in the 2004 Act that would limit the right of appeal otherwise conferred by s 50(1)(a) of the SCA.

For this reason, the Court heard detailed and rather intricate submissions on the question of which Act governed the hearing of the complaints laid by Mr Keogh, and rights of appeal from the Board’s decision. The Attorney-General intervened on this issue pursuant to s 9(2)(a) of the Crown Proceedings Act 1992 (SA). Mr Hinton QC SG, for the Attorney-General, supported the submission by Mr Tokley, for Mr Keogh, that the 2004 Act governed rights of appeal from the Board’s decision. As the objection to competence turns on an implication drawn from s 66 of the 1983 Act, it is convenient to begin by considering the question of whether that implication is to be drawn from s 66, on the proper construction of that provision. Accordingly, I turn to that question.

Section 66 of the 1983 Act relevantly provides as follows:

66 (1) Subject to subsection (2), a right of appeal to the Supreme Court shall lie against –

(a) a refusal by the Board to register or to reinstate the registration of a person under this Act or the imposition by the Board of conditions in respect of his registration; and

(b) a reprimand or order administered or made by the Board or the Tribunal in proceedings under Part 4.

(2) An appeal must be instituted within sixty days of the date of the decision appealed against, but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that time. …

The meaning of s 66(1) was considered by this Court in Medical Board v Marzola (1985) 39 SASR 429. The Court held that s 66 creates a right of appeal which is limited to applicants for registration under the Act, medical practitioners and former medical practitioners. In particular, it held that a person who lays a complaint of unprofessional conduct before the Board pursuant to s 54 of the 1983 Act has no right to appeal to the Supreme Court against a decision of the Board dismissing the complaint. Mr Keogh laid his complaint before the Board under s 54 of the 1983 Act.

The decision in Marzola has been followed or referred to with approval on a number of occasions: Fung v Wilde (1986) 41 SASR 232 at 236-237 and Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 128-129 King CJ. It was not challenged in submissions before this Court. The reasons of the Court were given by Johnston J, with whom the other two members of the Court agreed:  at 429. The essential part of his reasons appears in the following passages at 436-440:

“On first examination s 66 discloses strong evidence of a legislative intention that powers of appeal should be limited to applicants for registration, medical practitioners and former medical practitioners (hereinafter in discussing s 66 I refer to this grouping as "medical practitioners"). Section 66(1)(a) is plainly so limited since it is only against a refusal by the Board to register or reinstate registration (under Part III) or the imposition of a condition on registration that an appeal lies. It is worth noting that not only is there no power of appeal against an order to register or to reinstate; there is additionally no standing in any other party to be heard in relation to such matters under Part III.”

“Section 66(1)(b) confers a right of appeal against a reprimand (which can only be an appeal by a practitioner) and against "orders made by the Board or Tribunal in proceedings under Part IV". I have pointed out that in Part IV there is a careful distinction made between those powers the exercise of which is expressed to be by order and those not so expressed; and that the former are exercisable exclusively against practitioners and involve serious consequences; whereas the latter are with one exception, much less serious and not all exercisable against practitioners. The exception is the power of the Board to reprimand under s 54(5). That power is not expressed to be exercisable by order. But the right of appeal in case of reprimand is expressly conferred. The consequence is that the words of s 66(1)(b), a right of appeal against "a reprimand or order … under Part IV", neatly cover the significant orders possible under that Part against practitioners; but exclude, on the face of it, dismissal of proceedings against practitioners.” …

“But the strongest indication that the right of appeal is limited to practitioners affected by orders made against them is the sheer absence of any words suggesting a right of appeal against dismissal of proceedings as, for example, in the present case. …” …

“It appears to me that the intent of the legislation is that these specialist bodies will decide questions involving the interests of the medical profession and the interests of the public subject to the power of this Court to intervene by prerogative writ and the right of would-be practitioners, practitioners and former practitioners to appeal to this Court in matters seriously affecting their right to practice and/or their professional reputation.”

Mr Edwardson submits that having regard to the limited right of appeal created by s 66, and the fact that no right of appeal is conferred on a person who lays a complaint under s 54(1) of the 1983 Act, Parliament has made a decision by the Board to dismiss a complaint “final and without appeal”, to use the words of s 50(3)(c) of the SCA. He submits that no-one can appeal against a decision of the Board dismissing a complaint. The complainant has no right of appeal, and the medical practitioner the subject of the complaint would not, in the circumstances, be able to exercise the right of appeal otherwise conferred by s 66. So much may be accepted.

Mr Edwardson then draws from this proposition the conclusion, as a matter of necessary implication from s 66, that Parliament intended to deny to a complainant before the Board a right of appeal against a decision on appeal to a single Judge when the decision of the single Judge has the effect that the complaint in question is to be dismissed. He accepts that the decision of a single Judge on appeal from the Board can be the subject of an appeal to the Full Court by a medical practitioner if the single Judge dismisses an appeal against a reprimand or order. But he argues that if the single Judge allows an appeal, and sets aside a reprimand or order against the medical practitioner, that decision is final and incapable of appeal because it is the equivalent of a decision to dismiss the complaint.

It could be said that the decision of the single Judge allowing an appeal from the Board will result in an order that the decision of the Board upholding a complaint and reprimanding a medical practitioner will be set aside, and that for that decision there will be substituted a decision dismissing the complaint to the Board. In this way, his argument appears to be that the decision on appeal to the single Judge results in a decision by the Board dismissing the complaint, and consistently with the provisions of s 66, the decision of the single Judge is to be treated as final and without appeal in the same manner as would have been a decision by the Board to dismiss the complaint laid before it. Put a little differently, the submission is that by s 66 of the 1983 Act Parliament has indicated an intention that a complainant to the Board or to the Tribunal should not be able to challenge a decision favourable to a medical practitioner, whether made by the Board or by the Tribunal. This submission was put without reference to any authorities bearing on the question of when it is appropriate for a court to imply words into the text of legislation, in the course of interpreting that legislation.

The implication that Mr Edwardson seeks to draw is based on s 66(1) of the 1983 Act. It must be to the effect that no appeal lies to the Full Court of the Supreme Court from a decision on appeal to the Supreme Court if that decision sets aside a reprimand or order made by the Board or the Tribunal in proceedings under Part 4. On Mr Edwardson’s approach, that implication is to be drawn as an exception to, or notwithstanding, the provisions of s 50(1)(a) of the SCA.

A starting point is that s 50(1)(a) confers jurisdiction upon the Supreme Court. It is established that such provisions are not to be construed narrowly. They are to be construed “… with all the amplitude that the ordinary meaning of [the] words admits”:  Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 at [11] Gaudron, Gummow, Hayne and Callinan JJ. On this point see also Australasian Memory Pty Limited v Brien [2000] HCA 30; (2000) 200 CLR 270 at [17].

There is another principle of statutory interpretation which is relevant. In Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales (1956) 94 CLR 554 the High Court said at 560:

“When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality. …” That principle was applied by the High Court in Houssein v The Under Secretary, Department of Industrial Relations and Technology (NSW) (1981-1982) 148 CLR 88 at 96. In the light of these statements by the High Court, I turn to the question at issue.

The question is whether, as a matter of the proper interpretation of s 66 of the 1983 Act, the Court should conclude that Parliament intended, although it did not say so, that the right of appeal from a single Judge to the Full Court should be limited in the manner suggested by Mr Edwardson. Another way of putting the question is that it is whether the decision by the Judge is, by the 1983 Act, made “final and without appeal” at the instance of Mr Keogh.

In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, McHugh JA conveniently summarised the circumstances in which a court may “read words into a legislative provision to give effect to its purpose”:  at 302. Relying on the judgment of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74, he said that three conditions must be fulfilled:

“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.” In R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 this question was considered by the Court of Criminal Appeal of New South Wales.

Referring to the summary of Lord Diplock’s judgment by McHugh JA, Spigelman CJ said at [11]-[12]:

“[11] The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.”

“[12] As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.”

I respectfully agree, as his Honour says, that the process of construction must be “text based”. As I understand the reasons of the Court in Young, all five members of the Court agreed in substance with the approach taken by McHugh JA:  Beazley JA at [124]; Abadee J and Barr J at [217]; James J at [288]-[294].

I considered this issue in R v Di Maria (1996) 67 SASR 466. I took the approach referred to above, but made one point in conclusion that is worth repeating (at 474):

“In so concluding I have used the purpose of the legislation to test the consequences of the possible meanings of the provision. I have not, to effect the legislative purpose, made provision for a situation to which Parliament did not direct its mind, relying upon purpose as identified by me to remedy the oversight. I have added the words which, I consider, Parliament did intend to add to cover a situation to which it had adverted. Its error was mere oversight, the omission of the intended words: cf Tokyo Mart Pty Ltd v Campbell (at 283), per Mahoney JA.” Finally, on this topic I refer to the helpful consideration of the cases in Pearce and Geddes Statutory Interpretation in Australia (6th ed, Lexis Nexis, 2006) at 2.28-2.33.

The purpose of s 66(1)(b) is clear. It is to provide a limited right of appeal from a reprimand or order administered or made by the Board or the Tribunal in proceedings under Part 4. The matter at issue is the extent to which Parliament has pursued that policy. Johnston J in Marzola, in the final part of his reasons set out above, summarised the intent of the legislation. I respectfully agree with that summary.

I am not persuaded that the limitation suggested by Mr Edwardson must have been intended by Parliament if it were to achieve its purpose. Parliament must be taken to have known that the SCA provides for an appeal to the Full Court against a decision by a single Judge on appeal from the Board. I do not consider that the policy or intent identified by Johnston J is undermined if that further right of appeal is admitted. Once the relevant questions have been raised in the Supreme Court at the instance of a practitioner, there is no reason to infer that the processes of the Court for resolving that question should not be followed. It is possible to state what words Parliament would have used if it intended to achieve the result advocated by Mr Edwardson. Parliament would have gone on to provide that a decision of a single judge on appeal to the Supreme Court should be final and without appeal except on appeal by a medical practitioner. But the fact that one can identify the provision that would be required does not mean that the implication should be drawn.

I cannot think of any instance in which legislation in this State has provided that on appeal to this Court, a further appeal may be brought from a decision of a single judge only by one of the parties to the appeal. The unusual nature of such a provision, to my mind, is a reason for thinking that if this is what Parliament had intended, it surely would have said so. I cannot think of any reason for saying that Parliament must have so intended. To allow an appeal to the Full Court does not interfere with the policy and intent identified by Johnston J. Once the matter has been brought before the Supreme Court, at the instance of a practitioner, the questions considered by the Board or Tribunal are no longer to be decided at that level:  cf Minister For Industrial Affairs v Civil Tech Pty Ltd (1997) 69 SASR 348 at 360-361 Lander J. To say this is not to say that Parliament could not have decided that the decision of a single judge should be subject to appeal only at the instance of a practitioner. My conclusion is that one cannot conclude from the limited nature of the right of appeal created by s 66 that Parliament must have so intended, although it has not said so in terms. Accordingly, I consider that the suggested limitation on the right of appeal to the Full Court under s 50(1)(a) of the SCA cannot be found in the provisions of s 66. It follows that the appeal by Mr Keogh is competent, even if the 1983 Act regulates rights of appeal from the decision by the Board.

Did the 1983 Act regulate the hearing before the Board and the right of appeal to the Supreme Court?

It is appropriate to consider which Act regulated the hearing before the Board and the appeal to the Supreme Court. First, Mr Keogh’s cross appeal against the decision by the Board dismissing one of his two complaints was incompetent, if the 1983 Act regulated rights of appeal from the Board’s decision. The 1983 Act does not provide for an appeal by a complainant before the Board. Notwithstanding my conclusion that Mr Keogh’s appeal to the Full Court is competent, part of his appeal to the Full Court is incompetent if his cross appeal to the single Judge was incompetent. Second, if I am wrong in rejecting the restrictive implication that Mr Edwardson sought to draw from s 66, the appeal by Mr Keogh will nevertheless be competent if the 2004 Act regulated rights of appeal to the Supreme Court against the Board’s decision. That is common ground.

By his Notice of Appeal, Dr James appealed to a single Judge. That, no doubt, reflected the assumption apparently made by the parties before the single Judge that the 2004 Act was the relevant Act. The Board had proceeded under the 2004 Act. The single Judge said that the 1983 Act was the relevant Act:  James v Keogh at [60]. The impact of that conclusion on the hearing of the appeal was not raised before the Judge, nor was it dealt with in submissions before us, although a passing reference was made to the point. The 2004 Act does not contain transitional provisions that deal explicitly with the question of which Act governed the Board’s inquiry into Mr Keogh’s complaints nor with the question of which Act governed the right of appeal against the Board’s decision. I distinguish between these two matters because the answer to each question is not necessarily the same.

The starting point for this issue is to be found in the Acts Interpretation Act 1915 (SA) (“the Interpretation Act”). The relevant provisions of the Interpretation Act are in a form found in other States. Section 16 provides:

16 Saving of operation of repealed, amended or expired Act

(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—

(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or

(b) affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or

(d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.

(2) Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).

(2a) Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).

(3) Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.

(4) In this section— legal proceeding includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.

Section 24 provides:

24 When Act or provision deemed to be substituted for another

For the purposes of this Act and of any other Act, a later Act will be taken to be substituted for an earlier Act, or a provision of a later Act will be taken to be substituted for a provision of an earlier Act, when the earlier Act or provision is repealed or superseded and the later Act deals with the same matter as the Act or provision so repealed or superseded, whether it deals with the matter in the same or some other manner, and whether it deals only with the matter or with other matters also.

The Solicitor-General acknowledged, and I agree, that the issues are whether the 2004 Act manifests an intention that the 1983 Act is not to continue to govern either the hearing of a complaint laid before the Board before the 1983 Act was repealed, or the rights of appeal in relation to a decision made on such a complaint. Nevertheless, it is necessary to identify the means by which this starting point is reached.

As Mr Keogh laid his complaints before the Board while the 1983 Act was still in force, or at least while the relevant provisions of it were still in force, it can be said that Mr Keogh acquired a right for the purposes of s 16(1)(c) to have his complaint heard and determined under the 1983 Act. It would have been different if he had not yet laid his complaint before the Board. It can also be said that Dr James came under a liability to have that complaint dealt with under the 1983 Act, and not otherwise. Similar provision was made by s 8(c) of the Acts Interpretation Act 1901 (Cth). In Esber v The Commonwealth (1991-1992) 174 CLR 430 Mr Esber applied under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) for the review of a decision rejecting a redemption application. Before the review was heard, the legislation was repealed and replaced by legislation under which his compensation payment would not have been redeemable. The High Court held that the right to apply for a redemption was preserved. The majority (Mason CJ, Deane, Toohey and Gaudron JJ) said at 440-441:

“Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent". This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.” Footnotes omitted

That reasoning is equally applicable to the present case. Having laid his complaint before the Board, Mr Keogh had a right to have it heard and determined under the 1983 Act. See also Continental Liqueurs Pty Ltd v G F Heublein and Bro Incorporated (1959-1960) 103 CLR 422 at 426-427. The right that was preserved could be pursued in “legal proceedings” under the 1983 Act: s 16(1)(e). Those proceedings could be continued as if the 1983 Act had not been repealed:  s 16(2). Dr James became subject to a corresponding liability. It remains necessary to distinguish between, on the one hand, the preservation of a “right” for the purposes of s 16(1)(c) and the continuation of “legal proceedings” for the purposes of s 16(1)(e) and s 16(2) and on the other hand the impact of repealing legislation on matters that are “purely procedural”. This distinction was drawn by Gibbs J in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228. The Court was there concerned with the Queensland equivalents of s 16(1)(c) and s 16(1)(e) of the Interpretation Act. Having regard to the circumstances, the main focus was on the latter provision. Gibbs J said at 245:

“Plainly enough, par. (e) and the words which follow it require that, unless the contrary intention appears, an amending enactment shall be construed so that, notwithstanding the amendment, proceedings pending thereunder at the time of the amendment can be continued, and proceedings can be initiated after the amendment in respect of substantive rights acquired before the amendment took effect. The question is whether the subsection goes further and requires an amending statute to be construed, prima facie, in such a way as to preserve unaffected not only the legal proceeding or remedy itself, but also the course of procedure to be followed in taking the legal proceeding or pursuing the remedy. I had occasion to deal with this question in Smith v. Thiess Peabody Coal Pty. Ltd [1965] Q.W.N. 38, at p. 47 and I then said that it seemed to me:”

“that all par. (e) is intended to do is to preserve the availability of investigations, legal proceedings and remedies in respect of accrued rights, and not to preserve the procedure to be followed in the course of such legal proceedings."

After further consideration I adhere to this view.”

The majority of the Court agreed with his reasons on this point:  Menzies J at 235-236; Windeyer J at 236; Walsh J at 236. In this way one arrives at the starting point that s 16(1)(c) preserved Mr Keogh’s right to have his complaint inquired into and decided under the 1983 Act; that s 16(1)(e) preserved those proceedings, and that s 16(2) provided for them to be continued as if the 1983 Act had not been repealed. However, a change effected by the 2004 Act that could be described as purely procedural might be applicable to the preserved proceedings. No relevant procedural change was identified.

Mr Tokley based a submission on s 16(3). I agree that, for the purposes of s 24, the 2004 Act is an Act substituted for the 1983 Act. Mr Tokley submits that it is “adapted” to the “continuance and completion” of the hearing of Mr Keogh’s complaints. I agree that after the 2004 Act was enacted, a complaint could have been laid before the Board under that Act by Mr Keogh, alleging unprofessional conduct by Dr James that had occurred before the commencement of the 2004 Act, and while the 1983 Act was in force. That is made clear by s 3(2) which, like the equivalent provision in the 1983 Act, provides that a reference to unprofessional conduct extends to conduct committed before the commencement of the 2004 Act. But the 2004 Act is not “adapted” to the “continuance and completion” of Mr Keogh’s complaints. By s 51 of the 2004 Act the Board can inquire into and deal with a complaint only if laid “under this section”. Mr Keogh’s complaints do not answer that description.

The availability of a right of appeal has been held, not surprisingly, to be a matter of substance or a matter affecting rights, and not a matter of mere procedure:  Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28. Of course, there may be procedural matters attached to a right of appeal.  Section 66(1)(b) of the 1983 Act confers a right of appeal in relation to a decision made “in proceedings under Part 4”. The Board’s decision was made under Part 4. In light of this, the starting point is that rights of appeal from the Board’s decision were regulated by s 66 of the 1983 Act, subject to an indication of a contrary intention.

Rights of appeal are dealt with by s 65 of the 2004 Act. Section 65 relevantly provides:

65 Right of appeal to Supreme Court

(1) An appeal lies to the Supreme Court against—

(a) a refusal by the Board to register, or reinstate the registration of, a person under this Act; or

(b) the imposition by the Board of conditions on a person's registration under this Act; or

(c) a decision made by the Board or Tribunal in proceedings under Part 5.

(2) The appeal lies—

(a) in the case of an appeal against a decision made by the Tribunal—to the Full Court; or

(b) in any other case—to the Court constituted of a single Judge.

(3) An appeal under subsection (1)(c) against a decision may be instituted by the complainant or the respondent in the proceedings in which the decision was made.

As can be seen, s 65 creates a right of appeal against a decision made in proceedings under Part 5 of the 2004 Act. The Board’s decision was not made in proceedings under Part 5. It can also be seen that, by s 65(3), the limit on the right of appeal found in s 66 of the 1983 Act is removed. That, in my opinion, is a matter of substance or a matter of right, and not a matter of procedure. In accordance with ordinary principles, there is nothing in s 65 that indicates an intention, contrary to the starting point, that the right of appeal conferred on a complainant is applicable to a decision made under the repealed Act.

I turn then to the question of whether some other provision manifests a contrary intention to what I have described as the starting point based on the provisions of s 16 of the Interpretation Act. Mr Hinton pointed to a number of matters. Section 15 of the Interpretation Act provides:

15 Saving of administrative acts

Where an Act is repealed and the repealing Act contains provisions substantially corresponding to provisions of the repealed Act, then, unless the contrary intention appears, any administrative act done in pursuance of the repealed provisions (not being an administrative act the effect of which was exhausted at the time of the repeal) will, insofar as is not inconsistent with the repealing Act, be regarded as an administrative act done for the purposes of the corresponding provisions of the repealing Act.

He submits that the laying of a complaint before the Board is an administrative act for the purposes of s 15, and so is to be regarded as the laying of a complaint under the 2004 Act. We were not referred to any cases dealing with the meaning to be given to s 15. I do not consider that the laying of a complaint before the Board is to be treated as an administrative act for the purposes of s 15. In the context of this group of provisions to so treat it would be inconsistent with established case law dealing with the application of s 16(1)(c) of the Interpretation Act in particular.

Next, Mr Hinton submitted that an intention that the 2004 Act should govern the Board’s inquiry into Mr Keogh’s complaints could be discerned, or at least supported, from the fact that the definition of unprofessional conduct in the 2004 Act extends to conduct that occurred before it was enacted, and from the further fact that the 2004 Act gives the Board wider powers to deal with unprofessional conduct than the powers conferred by the 1983 Act. I accept the two premises on which the submission is based. I do not agree with the conclusion. It is not surprising that the 2004 Act would, in a sense, improve on the 1983 Act. The fact that it does, and the fact that the improved regime can apply to conduct that occurred before the 2004 Act came into force, of itself throws no light on the question of whether a complaint already before the Board when the 2004 Act came into force is to be dealt with under that Act. In my opinion these matters are neutral.

There are two transitional provisions that were the subject of submissions, and that call for comment. Schedule 1 to the 2004 Act is headed “Transitional Provisions”. Clause 2 of Schedule 1 relevantly provides:

2 Transitional provisions relating to Board and Tribunal

(1) The Medical Board of South Australia is the same body corporate as the Medical Board established under the repealed Act.

(2) On the commencement of this clause—

(a) all members of the Board then in office vacate their respective offices so that fresh appointments may be made to the Board under this Act; and

(b) all members of the Tribunal then in office vacate their respective offices so that fresh appointments may be made to the Tribunal under this Act. …

This provision came into operation on 26 August 2005. Pursuant to this provision “fresh appointments” were made to the Board. The members who constituted the Board for the purpose of hearing the evidence tendered on the complaints by Mr Keogh, and who participated in making the Board’s decision, were appointed under the 2004 Act. Mr Hinton submitted, if I understand him correctly, that this provision discloses an intention that the 2004 Act will regulate complaints laid under the 1983 Act. I disagree.

The Medical Board of South Australia (so described in the 2004 Act) “is the same body corporate” as the Medical Board (so described in the 1983 Act). This is the case even though by s 5(1) of the 2004 Act:  “The Medical Board of South Australia is established.”

After 26 August 2005, the Medical Board of South Australia was the same entity as the Medical Board. That is, the same Board continued in existence, even though its name changed and the persons constituting the Board were newly appointed. The continuing existence of the Board is a neutral matter in the context of the issues now under consideration. After 26 August 2005, the Medical Board continued to exist under a new name, and remained able to exercise powers and to perform functions under the 1983 Act, and of course was able to exercise powers and perform functions under the 2004 Act. The fact that the Board continued to exist, and was able to exercise powers under each of the Acts, does not support an argument that it was not intended to exercise its powers under the 1983 Act when inquiring into a complaint laid under that Act. I find no support for Mr Hinton’s submission in this provision.

The other transitional provision is to be found in the Medical Practice (General) Regulations 2005 (SA). They came into force on 26 August 2005:  see reg 2. Regulation 14 provides:

Schedule 1 clause 2(2) of the Act does not affect the operation of s 16 of the Acts Interpretation Act 1915 and, consequently, the Board as constituted before the commencement of that clause, and the Tribunal as constituted before the commencement of that clause, may continue to hear and determine proceedings under the repealed Act.

It is significant, in my opinion, that this provision refers to the Board continuing “to hear and determine proceedings under the repealed Act”. I consider that this regulation was made to deal with the situation in which the Board, acting under the 1983 Act, had embarked on the actual hearing of a complaint, and had moved beyond the preliminary stages that are part of its function of inquiring into a complaint. But for reg 14, in a situation in which a particular constitution of the Board would have been treated as “part heard” in a matter, there would be an obvious problem attributable to the change in membership of the Board resulting from the operation of clause 2(2) of Schedule 1 to the 2004 Act. One would not expect a differently constituted Board to take over the hearing of a matter in which the Board had reached the stage of conducting proceedings. While the overall function of the Board is to inquire into a complaint, s 57 of the 1983 Act contemplates a point at which the Board will begin to “conduct the proceedings”, a reference to the taking of evidence and the hearing of submissions. It was that situation that reg 14 was intended to meet. It ensured that notwithstanding clause 2(2)(a) of Schedule 1, members of the Board (and of the Tribunal) who had reached the point of being involved in the hearing of proceedings could continue to hear and decide a complaint, notwithstanding the fact that they had ceased to hold office as members of the Board. It is clear that reg 14 contemplates that in that situation the Board will apply the provisions of the 1983 Act. In my opinion, reg 14 does not support an inference that in other situations the Board, when inquiring into a complaint laid under the 1983 Act, will apply the provisions of the 2004 Act.

I do not accept Mr Hinton’s submission that if Parliament intended that all complaints laid before 26 August 2005 continue to be heard under the 1983 Act, reg 14 would not have been required because Parliament’s intention would be achieved by the operation of the provisions of s 16 of the Interpretation Act. I agree that the intention imputed to Parliament will be achieved by the operation of s 16 of the Interpretation Act. But reg 14 was made as a precaution, and because but for reg 14 there would have been a doubt about the ability of a Board constituted of persons who were no longer members continuing to deal with a complaint. That this is what the draftsman intended is suggested by the opening words of reg 14, which are to the effect that clause 2(2) of Schedule 1 “does not affect the operation of s 16” of the Interpretation Act. In other words, reg 14 is merely emphasising the operation of that provision.

Regulation 14 is an exercise of a power conferred by cl 6 of Schedule 1 to the 2004 Act. Clause 6 provides:

6 Regulations

The regulations may make other provisions of a savings or transitional nature consequent on the enactment of this Act.

It is not necessary to consider how far a regulation made under this power could go. I am satisfied that reg 14 is within power.

For those reasons, I find nothing in the 2004 Act to support a conclusion that Parliament intended, despite the provisions of s 16 of the Interpretation Act, that a complaint laid before the Board under the 1983 Act should be heard and determined other than under the 1983 Act. That conclusion is consistent with observations made by this Court in Medical Board of South Australia v N, JRP [2006] SASC 19; (2006) 93 SASR 546 at [2] Debelle J; at [43] Besanko J, at [83] Layton J. It seems that the point was not argued in that case. It is consistent with that intention to conclude that rights of appeal from the decision that the Board made in relation to the complaints laid by Mr Keogh are governed by s 66 of the 1983 Act. That, in any event, is the effect of s 16 of the Interpretation Act.

Answers to the Case Stated

I would answer the questions in the Case Stated as follows.

13.1  The complaints of unprofessional conduct were to be heard and determined by the Medical Board of South Australia in accordance with the provisions of the Medical Practitioners Act 1983.

13.2  The appeal and the cross appeal heard by the Honourable Justice Debelle were governed by the provisions of the Medical Practitioners Act 1983 for all purposes relevant to the Case Stated.

13.3  The purported cross appeal to the Supreme Court by Mr Keogh from the decision of the Medical Board of South Australia made on 2 April 2008 was not a competent appeal.

13.4  The judgment of the Honourable Justice Debelle given on 13 June 2008 allowing the appeal is not final and without appeal within the meaning of s 50(3)(c) of the Supreme Court Act 1935 (SA). Mr Keogh is entitled to appeal against the judgment. The judgment on the cross appeal cannot be the subject of an appeal by Mr Keogh because the cross appeal was incompetent.

13.5  It is not necessary to answer this question.

There is one final matter that should be mentioned. Section 66 of the 1983 Act provides for an appeal to the Supreme Court. The section does not indicate whether the appeal is to be heard in the first instance by a single Judge or by the Full Court. In that respect s 66 differs from s 65 of the 2004 Act. The submissions before the Full Court proceeded on the basis that the appeal lay to a single Judge at the first instance. I have not considered the question, as it was not raised in submissions. Section 48 of the SCA might be the basis for the appeal being heard by a single Judge. Provisions of the Supreme Court Rules 1987, in particular r 96.04 and r 97 might also be relevant. If the Supreme Court Civil Rules 2006 are relevant, r 280 of those Rules may bear upon the question. In Marzola the appeal was from a decision of the Tribunal, and consistently with r 96.04 of the Supreme Court Rules 1987, appears to have been heard in the first instance by the Full Court. In Chan v Medical Board of South Australia (1986) 41 SASR 434, the appeal was again against an order by the Tribunal, but was heard by a single Judge. In T v The Medical Board of South Australia (1992) 58 SASR 382, the appeal was against the decision of the Tribunal, but was heard by a single Judge and then by the Full Court. I have not investigated the situation any further and, as I have already said, the submissions before this Court proceeded on the basis that the appeal was appropriately heard by a single Judge at the first instance.

White J

I agree with the answers proposed by the Chief Justice to the questions of law reserved for consideration by this Court. I also agree with his reasons.

Layton J

I have had the opportunity of reading the reasons for decision of the Chief Justice. I concur with his recital of the background and also with his conclusions, reasons, and answers given in respect of questions 13.1, 13.2, 13.3 and 13.5. I agree with his Honour’s answer to question 13.4 regarding the proposed appeal against the cross-appeal but differ in relation to the proposed appeal against the dismissal of the complaint.

Question 13.4 of the case stated concerns whether Mr Keogh is entitled to appeal against the judgment of Debelle J given on 13 June 2008. The Notice of Appeal seeks, inter alia, to appeal against the order made by Debelle J to allow the appeal of Dr James, to set aside the order made by the Medical Board and substitute the decision of the Board with an order to “dismiss the complaints of Mr Keogh dated 18 November 2004 and 21 April 2005”. The appeal is sought pursuant to s 50 of the Supreme Court Act 1935 (SA) (“SCA”). The appeal is governed by the provisions of the Medical Practitioners Act 1983 (SA) (“the 1983 Act”) for the reasons given by the Chief Justice, which I adopt. Those provisions are set out in s 66 of the 1983 Act as follows:

66. (1) Subject to subsection (2), a right of appeal to the Supreme Court shall lie against—

(a) a refusal by the Board to register or to reinstate the registration of a person under this Act or the imposition by the Board of conditions in respect of his registration; and

(b) a reprimand or order administered or made by the Board or the Tribunal in proceedings under Part IV.

(2) An appeal must be instituted within sixty days of the date of the decision appealed against, but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that time.

(3) The Supreme Court may, on the hearing of an appeal, exercise any one or more of the following powers, as the case requires:

(a) affirm or vary the decision by the Board to refuse an application for registration or reinstatement or to impose conditions on the appellant’s registration or quash the Board’s decision and, in a case where the Board has refused an application, direct the Board to grant the application upon such conditions (if any) as the Court determines and, in a case where the Board has imposed conditions on the appellant’s registration, impose such conditions on his registration as the Court thinks fit;

(b) affirm, vary or quash the reprimand or order appealed against, or substitute, or make any finding, reprimand or order that should have been made in the first instance;

(c) remit the subject matter of the appeal to the Board or the Tribunal (as the case may be) for further hearing or consideration or for rehearing;

(d) make any order as to costs or as to any other matter that the case requires.

(4) When ordering the remission of the subject matter of an appeal to the Board or the Tribunal for rehearing, the Court may disqualify a member from rehearing the matter and, in that case, the deputy of that member may, if he is not also disqualified, take the place of that member for the purpose of the hearing.

This Court in Medical Board v Marzola (“Marzola”) held that s 66 of the 1983 Act limited the right of appeal to medical practitioners in relation to either a refusal to register or reinstate, or conditions of registration (s 66(1)(a)); or reprimands or orders made under Part IV of the 1983 Act (s 66(1)(b)). In particular, this Court found that the Registrar, the Minister, the Australian Medical Association (“AMA”) or an aggrieved person, each of whom are able to lay a complaint against a medical practitioner, were not persons or bodies who had a right of appeal against a finding that unprofessional conduct was not made out and a subsequent dismissal of the complaint.

The reasoning of Johnston J, with whom King CJ and Matheson J concurred, noted that s 66(1) expressly referred to “a reprimand or order” and it did not refer to “findings” of the Tribunal, or “dismissal” by a Tribunal. In particular, Johnston J observed:

“If the Parliament had intended to give to the Board a right of appeal against a finding that professional misconduct was not made out or give to the Registrar, the Minister, the A.M.A. and others given power to initiate proceedings before the Board a right of appeal against findings by the Board it could simply and easily have done so. I think that this point is underlined by the fact that certain of the powers of the Supreme Court on appeal closely follow the verbiage of the appeal provisions in the Justices Act but the wording of s. 66(1) conferring the right of appeal is totally different.”

In relation to the reference by Johnston J to the Justices Act 1921 (SA), s 163 specifically referred to “… an order dismissing a complaint …”.  Therefore, under that Act, the dismissal of a complaint was made by “order” of the Court. Johnston J also identified policy reasons as to why it was not surprising that complainants would not be allowed to appeal:

“Both the Board and the Tribunal are set up as highly specialist bodies. The Board is specifically charged with maintaining standards of service, competence and conduct in the medical field. Its composition is such as to virtually ensure that medical practitioners in private practice, in government service and in the teaching faculties will be represented. The Tribunal is presided over by a person holding judicial office or with long experience in legal practice. In both bodies medical practitioners with a knowledge of the field predominate but the public interest is independently represented by persons from outside the medical profession and appointed by the Minister.”

“It appears to me that the intent of the legislation is that these specialist bodies will decide questions involving the interests of the medical profession and the interests of the public subject to the power of this Court to intervene by prerogative writ and the right of would-be practitioners, practitioners and former practitioners to appeal to this Court in matters seriously affecting their right to practice and/or their professional reputation.” The reasoning of Johnston J was later expressly approved by this Court in Legal Practitioners Complaints Committee v A Practitioner.1  This Court was considering the effect of s 86(1) of the Legal Practitioners Act 1981 (SA) (“LPA”). Section 86(1) of the LPA provided:

(1) Subject to subsection (2), a right of appeal to the Supreme Court shall lie against any reprimand or order of the Tribunal administered or made in the exercise or purported exercise of any of its powers or functions under this Act.

The context was that the Legal Practitioners Complaints Committee (“Complaints Committee”) had laid a charge against a legal practitioner pursuant to the LPA. The Legal Practitioners Disciplinary Tribunal had dismissed the charge of unprofessional conduct. The Complaints Committee instituted an appeal to the Supreme Court. The matter came on before a single judge and objection was taken to the competence of the Complaints Committee instituting an appeal in relation to the dismissal. At the request of the practitioner and with the concurrence of the Complaints Committee, the single judge determined this as a preliminary question. The single judge ruled that the appeal was competent, but nonetheless granted leave to appeal from that ruling. The matter came on before the Full Court. There was a preliminary issue as to whether the ruling by the single judge was a matter which required leave, or whether it was an appeal as of right. For varying reasons, the Full Court decided that the matter was properly before it, either as of right or as a consequence of leave having been given. [2]

On the substantive issue of competence, King CJ concluded that although the provisions of s 86(1) of the LPA were not identical with s 66 of the 1983 Act, for similar reasons, s 86(1) did not confer a right of appeal against a “dismissal” of a charge. As King CJ stated: [3]

“It is true that in Marzola’s case, Johnston J, with whose judgment the other members of the Court agreed, had recourse in support of his conclusion to certain features of the Medical Practitioners Act 1983 which are not present in the Legal Practitioners Act 1981. But those matters were merely ancillary to his fundamental line of reasoning. That reasoning was based upon the language in which the right of appeal is conferred and its link with the language used in connection with the powers of the Tribunal. The appeal under the Medical Practitioners Act 1983 lies, so far as is relevant for present purposes, against “a reprimand or order” and those words are used in the section relating to the powers of the Tribunal only, orders for costs aside, in connection with disciplinary measures against a practitioner. There is “the sheer absence of any words suggesting a right of appeal against dismissal of proceedings …”: Medical Board v Marzola (supra) per Johnston J at 437. This fundamental line of reasoning has equal application to the corresponding provisions of the Legal Practitioners Act 1981.” …

“If, however, questions of policy are to enter into the construction of the provisions, I would add this consideration. The appeal sections of the Medical Practitioners Act 1983 and the Legal Practitioners Act 1981 are in very similar terms. Appeal sections in very similar language appear in other Acts governing other vocations. It is highly desirable that these sections, couched in similar terms, should be construed in the same sense. That course will provide Parliament with the opportunity of considering whether a right of appeal against dismissal of a charge is desired and of amending any of the Acts into which it is desired to insert such a right.” [Emphasis added.]

I emphasise the observation by King CJ that Parliament has the opportunity to amend the legislation if broader rights of appeal are considered desirable. Prior J, in dissent, concluded that an appeal against a dismissal by the Tribunal was competent because of differing wording between s 66 of the 1983 Act and s 86 of the LPA. His Honour noted that the word “any” appeared in s 86 of the LPA twice and should be read widely and differently from the provision in s 66 of the 1983 Act. He also noted that unlike the 1983 Act where the Tribunal was given “the final and exclusive jurisdiction”, this was not the consequence of s 86 of the LPA as a result of the differing wording. His Honour concluded that: [4]

“The Tribunal’s power to dismiss a charge, if exercised, generates a decision to dismiss the charge. Decisions can be described as orders. The express recognition of some decisions as orders, for example, a decision to fine, does not deny the same description to other decisions. To distinguish a reprimand or recommendation from an order is not to distinguish other decisions from the description of “order”. A decision of the Tribunal, whether favourable or adverse to a practitioner as to the conduct complained against him is an order of the Tribunal.” [References omitted.]

Olsson J, who agreed with the result of the Chief Justice, differed with the reasoning of Prior J, stating: [5]

“Whilst there is a superficial attraction to the concept that the use of the word “any”, associated with the unqualified reference to powers and functions, suggests a wide intended connotation, the inescapable fact remains that, not only is the Act totally silent as to the topic of dismissals but it is, on the other hand, highly specific in speaking of “orders” which the Tribunal is expressly empowered to make.” [Emphasis added.]

In summary, the Court unanimously concluded the correctness of the reasoning in the Marzola case. The dissent of Prior J was only on the basis of differing legislation. Another case which endorsed the reasoning of the Full Court in Marzola is the case of Queensland Law Society Inc v A Solicitor. [6]  The Full Court of the Supreme Court of Queensland was considering the provisions of s 6(4) of the Queensland Law Society Act 1952-1985 (Qld) which relevantly provided that there was a right of appeal to the Supreme Court “from any order of the Statutory Committee made under the powers of this Act”. The circumstances were that the Statutory Committee had determined it was not satisfied that charges of professional misconduct or unprofessional conduct had been proved and accordingly ordered “that the charges be dismissed”. The Law Society of Queensland, the Attorney-General for Queensland and the Minister for Justice each appealed to the Full Court seeking an order that the orders made by the Committee dismissing the charges be set aside, and that in lieu the solicitor be adjudged guilty of professional misconduct or unprofessional conduct and that he be struck off.

A preliminary point was raised by the practitioner that none of the proposed appellants were able to appeal against a dismissal. McPherson J noted that although the Statutory Committee made “orders that the charge be dismissed”, the description of the dismissal being an “order” did not make it so, or provide a foundation for the right of appeal. An appeal could not lie unless the order was “under the powers of this Act”. [7]  McPherson J also discussed whether the “findings” of a Tribunal were to be regarded as “orders”. McPherson J referred, with approval, to Legal Practitioners Complaints Committee v A Practitioner and concluded: [8]

“There is thus a consistent line of authority in various jurisdictions to the effect that, in the case of provisions comparable to those in s.6 of the Act, the right of appeal conferred by s.6(4) does not authorise an appeal in a case where no adverse order at all has been made against the practitioner by the Statutory Committee. There is nothing surprising in such a conclusion: cf Medical Board v. Marzola (1985) 39 S.A.S.R. 429, mentioned in the South Australian decision referred to, in which the Full Court held that, in the absence of words suggesting a right of appeal against dismissal of proceedings, no such right existed under a provision allowing for appeals against a “reprimand or order”: see Legal Practitioners Complaints Committee v. A Practitioner (1987) 46 S.A.S.R. 126, 128, 141.” [Emphasis added.]

McPherson J concluded: [9]

“The result of all this is that in the context both of s.6(4) of the Act and other similar provisions authority uniformly supports the view that an appeal is not available against a finding having the effect of dismissing the proceedings unless the provision in question expressly so specifies. The underlying reason for this is that rights of appeal, which are always the creation of statute, are to be strictly construed (Re S (a law practitioner) [1975] 1 N.Z.L.R. 725, 726); that a decision by the Statutory Committee that simply dismisses an application to it is at most a finding of fact and not an “order”, or an “order made under the powers of the Act” (Re A Solicitor [1934] 2 K.B. 463); and that, because proceedings under s.6 are at least in theory capable of ending in imprisonment, they are in some sense criminal in nature, and so encounter the objection that a right of appeal against an acquittal will not readily be presumed to have been intended.” [Emphasis added.] The principles which I derive from the reasoning in each of these decisions are as follows:

1. Rights of appeal are creations of statute and are to be strictly interpreted.

2. Section 66 of the 1983 Act does not give a right of appeal against dismissal of a complaint, nor does it give a right of appeal against a finding, as a finding is not an order or reprimand.

3. Section 66 of the 1983 Act expressly confines the right of appeal to one instituted by a practitioner against an adverse order or reprimand by the Tribunal.

4. Complainants do not have a right of appeal on any basis under s 66(1)(b) of the 1983 Act.

5. A dismissal of a complaint by the Tribunal is final and there is no appeal by any party.

The conclusion on this point is that s 66(1)(b) did not give any right to Mr Keogh to appeal against a decision of the Board, as his cross appeal was incompetent. The appeal by Dr James was competent.

The particular issue which arises in this case is whether s 50 of the SCA enables Mr Keogh to appeal to the Full Court against a judgment of Debelle J who dismissed his cross-appeal, allowed Dr James’ appeal and dismissed Mr Keogh’s complaints.

Assuming for the purposes of this discussion that it was appropriate for the appeal by Dr James to have been heard by a single judge of the Supreme Court and not the Full Court, [10] then two points arise as to the interpretation of s 50 of the SCA. First, do the provisions of s 50 enable a party, who had no right of appeal to the Supreme Court under s 66 of the 1983 Act, to appeal to the Full Court. Second, do the provisions of s 50 enable a party to appeal against the order made by Debelle J that the complaints against Dr James be “dismissed”.

Section 50 of the SCA relevantly provides:

50 –– Appeals

(1) Subject to this section ––

(a) an appeal lies to the Full Court against a judgment of the court constituted of a single judge; and …

(3) No appeal lies against ––

(a) an order allowing an extension of time to appeal from a judgment; or

(b) an order giving unconditional permission to defend an action; or

(c) a judgment that is, by statute, under the rules, or by agreement of the parties, final and without appeal.

It can immediately be seen that s 50 makes no reference to the source of the conferral of the jurisdiction on the Supreme Court, the parties to an appeal or the standing of a proposed appellant to appeal. There have been a number of cases dealing with the scope of the power of the Supreme Court, indicating that the provisions are not to be constructed narrowly. However, in each case the circumstances differ from the particular issues that have arisen in this case.

The first case is Australasian Memory Pty Limited v Brien. [11] This case was concerned with the interpretation of the powers of the Supreme Court given to it pursuant to s 447A of the Corporations Act 2001 (Cth) (“Corporations Act”). Section 447A is encompassed within Part 5.3A of the Corporations Act, which sets out, inter alia, the statutory requirements of an administrator in a situation of a company under voluntary administration. Section 447A provides as follows:

(1) The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.  

(2) For example, if the Court is satisfied that the administration of a company should end:

(a) because the company is solvent; or

(b) because provisions of this Part are being abused; or

(c) for some other reason;

the Court may order under sub-section (1) that the administration is to end.

(3) An order may be made subject to conditions.

(4) An order may be made on the application of :

(a) the company; or

(b) a creditor of the company; or

(c) in the case of a company under administration – the administrator of the company; or

(d) in the case of a company that has executed a deed of company arrangement – the deed’s administrator; or

(e) the Commission; or

(f) any other interested person.

As can be seen, s 447A(1) empowered the Supreme Court to make “such order as it thinks appropriate about how [Part 5.3A] is to operate in relation to a particular company”. Section 447A(4)(c) empowered the Court to make an order on the application of a number of named persons, including any other interested person. In this case, application was made under s 447A(4)(c) by the administrators regarding a defect which occurred because a meeting of creditors was convened before the time specified in s 449A(1) of Part 5.3A. A single judge heard the application by the administrators and made orders which cured the irregularity by abridging time with other consequential orders. This had the effect of retrospectively endorsing their actions. On appeal, it was contended that s 447A did not permit a court to render specific time limitations set out within Part 5.3A to be negated. The Full Court of the Supreme Court dismissed the appeal and an appeal was then filed with the High Court.

The High Court when dealing with this matter stated this: [12]

“The particular question that arises in the present appeal is whether an order can be made under s 447A(1) to alter the way in which s 439A(2) applies to the Company. Asserting that this question should be answered in the negative offers no reason for reaching the conclusion that is asserted. In particular, to say that s 447A(1) cannot be understood as permitting the “circumventing” of other “specific” provisions of Pt 5.3A amounts to no more than an assertion of the answer to the question that arises; it offers no reason for reaching the conclusion proffered. Reasons for reaching any conclusion about the construction of the provision must be sought, at least in the first instance, in the statutory language.”

“It is important to notice that the orders that may be made under s 447A(1) are described as orders about how Pt 5.3A is to operate “in relation to a particular company”. The power is not cast in terms of a power to make orders to cure defects or to remedy the consequences of some departure from the scheme set out in the other provisions of Pt 5.3A. Its operation is not confined to such cases. Nor is there anything on the face of s 447A(1) that suggests that it should be read down. In particular, the words of the provision are wide enough to confer power to make orders which will have effect in the future but which are occasioned by something that has been done (or not done) under the other provisions of Pt 5.3A before application is made under s 447A(1). As was said in the judgment of the Court in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc:”

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.” [Reference omitted.]

The legislation conferring jurisdiction on the Supreme Court to make orders was broadly expressed. The Court considered that it was inappropriate for provisions which conferred jurisdiction to be interpreted in a restrictive way so as to limit the powers of the court. That case was concerned with the scope of the powers of the Supreme Court. It was not addressing the right of appeal, nor was it addressing standing.

Turning now to the case of Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria. [13]This case was concerned with whether statutory provisions contained in the Victorian Civil and Administrative Tribunal Act 1998 (Vict) (“the VCAT Act”) excluded a right of appeal to the Court of Appeal. Section 148(1) of the VCAT Act provided that:

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding—     …

(b) to the Trial Division of the Supreme Court in any other case—  if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.  

Section 17(2) of the Supreme Court Act 1986 (Vict) provided that unless expressly provided for by that Act or any other Act, an appeal lay to the Court of Appeal from any determination of the Trial Division constituted by a judge. After several appeal processes, the Court of Appeal held that it had no jurisdiction to entertain an appeal from the Trial Division because s 148(1) of the VCAT Act excluded a right of appeal to the Court of Appeal from a refusal by the Trial Division to grant leave. The matter then came on for hearing before the High Court. The appeal was allowed and the Court decided as follows: [14]

“Section 17(2) contemplates “express” provision otherwise. There are legislative provisions in which “expressly” is not used as an antonym of “impliedly” but “merely serves to emphasise the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests”. It may greatly be doubted, however, that “expressly” should be understood as being used in s 17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge.”

“In terms, s 148(1) deals only with review of orders of the Tribunal. It does not deal with the appellate review of decisions made by the Supreme Court. That may very well be reason enough to conclude that s 148(1) is not an express provision of the kind contemplated by s 17(2) of the Supreme Court Act.” [References omitted.]

The High Court decided that s 148(1) did not expressly exclude a right of appeal, and that limitations should not be implied. The conferral of jurisdiction on the Supreme Court should be construed with all of the amplitude that ordinary words permit.

Again, the decision in that case did not deal with the particular subject matter at bar, and it was dependent on the specific terms of the conferral. The section which conferred jurisdiction expressly gave a right of appeal to any party to the Trial Division and to the Court of Appeal. There was no limit to the powers of the Supreme Court expressed, or even suggested. Thus a decision of a Trial Division judge to refuse leave could be dealt with in accordance with the usual powers of the Supreme Court.

The Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales and Another [15] (“the Electric Light case”) concerned the interpretation of s 3(2) of the Electricity Commission (Balmain Electric Light Company Purchase) Act 1950 (NSW) (“the Purchase Act”) in conjunction with s 17(1) of the Land and Valuation Court Act 1921-1940 (NSW) (“Land and Valuation Court Act”).

Section 3(2) of the Purchase Act provided the Land and Valuation Court with jurisdiction to hear and determine a matter referred to it. For that purpose, the court and judge were invested with all of the powers, rights and privileges conferred on the court and such judge by the Land and Valuation Court Act as amended. Section 17(1) of the Land and Valuation Court Act  provided that:

“When any question of law arises in any proceeding before the court the court shall, if so required in writing by any of the parties … or may of its own motion, state a case for the decision of the Supreme Court thereon.”

The Land and Valuation Court had given a decision as to the value of an undertaking between the parties. The applicant requested the judge giving the valuation to state a case for the decision of the Supreme Court as to the correctness of the valuation. This request was made pursuant to s 17 of the Land and Valuation Court Act. The particular issue which arose was whether s 17 of the Land and Valuation Court Act applied to proceedings pursuant to the Purchase Act so as to confer a right upon the applicant to request that a case be stated. The judge to whom the application was made decided that the right conferred by s 17 did not apply to the reference before him under s 3 of the Purchase Act. That decision then came by rule nisi before the Full Court of the Supreme Court. The rule nisi was discharged and this was the subject of appeal to the High Court.

The High Court held that there was nothing contained within s 3 of the Purchase Act to suggest that the reference of the question regarding the valuation of the undertaking should not be considered according to the rules of procedure as set out in s 17 of the Land and Valuation Court Act. Thus, the provisions of s 17 of the Land and Valuation Court Act applied to the reference, enabling either party to request a case to be stated for the decision of the Supreme Court. In so concluding, the High Court stated as follows: [16]

“When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.”  Again, the application of this principle does not answer the issue at bar.

That case concerned rules of procedure and the High Court decided that when a matter went to the Supreme Court on appeal, then procedural matters were appropriately governed by the Supreme Court Rules, being incidental to the exercise of its jurisdiction. Section 3 of the Land and Valuation Court Act, which conferred jurisdiction on the Supreme Court, did not suggest otherwise. The High Court was not considering matters of standing. Similar principles were applied by the High Court in Houssein v The Under Secretary Department of Industrial Relations and Technology (NSW), [17] again the Court was concerned with the scope of orders which may be made.

In this case, it is not a question of the scope of the orders which can be made by this Court under s 50 of the SCA, rather it the standing of Mr Keogh to seek an appeal to the Full Court. Section 50 is only enlivened if there is a competent appellant and a competent appeal. The Full Court is not vested with jurisdiction to hear an appeal simply because s 50 permits an appeal and there is a judgment of a single Judge. Section 50 does not confer rights of standing to a person seeking to appeal against a judgment of a single Judge. The conferral of standing or competence of a person to appeal to the Full Court is not given by s 50, but is conferred by s 66 of the 1983 Act. Section 50 provides a mechanism for further appeal, which, as with the appeal at first instance, is governed by the conferring legislation. Mr Keogh does not have either a right of appeal or the standing to appeal to the Supreme Court under the 1983 Act. Therefore his cross appeal was incompetent and likewise his proposed appeal against the dismissal of his cross appeal is also incompetent.

In relation to the appeal by Dr James, Mr Keogh was named as a respondent to the appeal in the Supreme Court and thereby had rights to be heard as a respondent. Section 66 of the 1983 Act which creates the right of appeal to the Supreme Court, expressly contains limitations as to the subject matter of the appeal, and the right of a person to appeal, and this conferral must be strictly construed. [18] Section 50 of the SCA therefore cannot be interpreted so as to confer rights of standing to Mr Keogh as a proposed appellant. Section 66 of the 1983 Act, which confers jurisdiction on the Supreme Court, excludes his standing to appeal to the “Supreme Court”, which expression either refers to or includes the Full Court of the Supreme Court.

Put another way, s 50 cannot, in my view, enable a person who had no right to appeal to a single judge of the Supreme Court under the 1983 Act, to thereby gain a right of appeal to the Full Court. A person’s lack of standing to appeal remains the same. The jurisdiction of the Supreme Court to hear an appeal cannot rise above its source. The mere fact that Mr Keogh was named as a respondent and thereby a party to appeal before Debelle J, does not mean that he is given, by virtue of s 50, standing to appeal contrary to the specific provision of the vesting legislation.

Turing now to whether s 50 permits a party to appeal against the “order” made by Debelle J to dismiss the complaints against Dr James. It is necessary to consider the background to this “order”. The Board made a decision to “censure” Dr James pursuant to s 51(6)(a) of the 2004 Act. [19]  This was not a power which was made available under the 1983 Act. The only power of the Board under the 1983 Act was to “reprimand” a practitioner pursuant to s 54(5) of the 1983 Act. Dr James appealed pursuant to s 65(1) of the 2004 Act, inter alia, against the censure of the Board. [20] Debelle J, after hearing the appeal, relevantly concluded at paragraph 137: “For these reasons I allow the appeal … . The order of the Board will be set aside and in its place there will be an order that Dr James is not guilty of unprofessional conduct.”

The final court orders on the appeal were expressed as follows: …

3. The order of the Medical Board of South Australia made on 2 April 2008 be set aside.

4. The [sic] in place of the order of the Medical Board of South Australia it is ordered “that the complaints of Henry Vincent Keogh dated 18 November 2004 and 21 April 2005 be dismissed”. …

There is a difference between the expression of the orders by Debelle J in his reasons and then the orders subsequently made by him. Further, I note Debelle J expressed that the complaints dated 18 November 2004 and 21 April 2005 “be dismissed”. This was not, in my view, correctly described as an “order”.

Returning to the approach by the Board. Although it was purporting to operate under the 2004 Act in deciding to “censure” Dr James instead of deciding to “reprimand” him in accordance with the 1983 Act, the sanction in either case was dependent upon an inquiry by the Board into whether Dr James was guilty of unprofessional conduct as alleged in the complaints. No point was taken by either party before either Debelle J or before this Court as to this difference. I consider that, as the substance of the inquiry by the Board and the practical effect of the sanction imposed, be it a “censure” or “reprimand”, are common to both Acts, it does not affect the validity of the decision of the Board. It is appropriate to treat the decision to “censure” as being a decision to “reprimand” Dr James.

I move now to the orders made by Debelle J. The “order” made by Debelle J was couched as an order that the complaints “be dismissed”. As McPherson J in the Queensland Law Society Inc v A Solicitor [21] observed, to characterise a dismissal as an order does not render it to be an order. As Johnston J noted in Marzola, in the absence of a statute referring to “an order to dismiss”, there can be no appeal against a dismissal. What is before this Court is an appeal against a “dismissal” by Debelle J of the complaints.

The issue therefore is whether Mr Keogh or indeed, Dr James if he was interested to do so, was able to appeal against a dismissal of the complaints made by Debelle J. Further, whether s 50 of the SCA enables a Full Court to hear any appeal against “dismissal” of complaints. In my view, it does not. First, because s 66 of the 1983 Act does not permit an appeal against a dismissal of a complaint. Second, because s 50 cannot confer jurisdiction on this Court to hear an appeal against a “dismissal”, in particular, by Mr Keogh. Mr Keogh in his Notice of Appeal to the Full Court seeks to appeal against “the whole of the judgment” of Debelle J [22] and seeks orders: [23]

1. That the appeal be allowed;

2. That the order dismissing the cross appeal be set aside;

3. That the finding by the Medical Board of South Australia on 2 April 2008 that Dr James’s unprofessional conduct was due to ignorance or disregard of his responsibilities as an expert witness be set aside;

4. That the finding by the Medical Board of South Australia on 2 April 2008 that Dr James was guilty of unprofessional conduct be affirmed;

5. Such further and or other orders as the Court deems fit; …

The Notice of Appeal lacks jurisdictional clarity. It does not refer to the orders made by Debelle J or the “censure” by the Board. Instead it purports to be an appeal at large in relation to the “findings” by the Judge and seeks restoration of the “findings” of the Board. This Notice of Appeal could not give rise to a competent appeal under s 66(1) of the 1983 Act. Section 50 of the SCA cannot operate so as to extend a right of appeal on a subject matter beyond the provisions of s 66(1). In addition, s 66(3)(b) of the 1983 Act limits the powers of the Supreme Court to affirm, vary or quash the reprimand or order appealed against, or substitute, or make any finding, reprimand or order “that should have been made in the first instance”.

I consider that Debelle J was acting within jurisdiction when he allowed the appeal and set aside the “order” (which I take, in the circumstances, to have been the “censure”) of the Board and to dismiss the complaints. It was not technically correct to describe the “censure” as being an “order”, however there was jurisdiction to hear an appeal in relation to a “reprimand”. The findings made by Debelle J formed part of the reasons and basis for the sanction.

Assuming that Mr Keogh appropriately worded a Notice of Appeal and sought to appeal against both the allowance of the appeal and the dismissal of his complaints by Debelle J, it would not alter the fact that no appeal lies against that judgment. Section 66 of the 1983 Act still governs the grounds of appeal. It is not at large. Neither party could appeal against the “dismissal” of the complaints.  A dismissal of a complaint is a final decision. The provisions of s 50(3)(c) of the SCA would also apply and prohibit an appeal against a “dismissal”.

In summary, Mr Keogh does not have a competent appeal because he has no standing and because he cannot appeal against a dismissal of his complaints. In so concluding, I respectfully disagree with the Chief Justice’s reasoning that it could not have been that Parliament intended a one-sided appeal. This was the intended effect of the 1983 Act and to interpret s 50 of the SCA to have a different effect, is against the clear intendment.

As King CJ highlighted in Re A Practitioner, [24] Parliament can rectify this and indeed it has done so in the 2004 Act by increasing the standing to appeal to complainants and broadening the grounds to a “decision” of the Board under Part 5. The later 2004 Act extended the scope of content of appeal as well as the parties able to appeal.

I therefore would answer Question 13.4 as follows. Judgment of the Honourable Justice Debelle given on 13 June 2008 on both the appeal and cross appeal was final and without appeal by Mr Keogh pursuant to s 50(1) and 50(3)(c) of the Supreme Court Act 1935.

[1] (1987) 46 SASR 126.

[2] Legal Practitioners Complaints Committee v A Practitioner  (1987) 46 SASR 126, King CJ at 128, Prior J at 130, Olsson J at 136.

[3] Legal Practitioners Complaints Committee v A Practitioner  (1987) 46 SASR 126, 128-129.

[4] Legal Practitioners Complaints Committee v A Practitioner  (1987) 46 SASR 126, 132.

[5] Legal Practitioners Complaints Committee v A Practitioner  (1987) 46 SASR 126, 142.

[6] [1989] 2 QR 331.

[7] Section 6(4) of the Queensland Law Society Act.

[8] Queensland Law Society Inc v A Solicitor [1989] 2 QR 331, 335.

[9] Queensland Law Society Inc v A Solicitor [1989] 2 QR 331, 337.

[10] There is a question as to whether it was appropriate for an appeal from a Board decision to have been heard before a single Judge of the Supreme Court and not the Full Court, absent an appropriate order, or legislative provision. No point was taken by any party.

[11] 2000) 200 CLR 270.

[12] Australasian Memory Pty Limited v Brien (2000) 200 CLR 270, [16], [17].

[13] (2001) 207 CLR 72.

[14] Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72.

[15] (1956) 94 CLR 554.

[16] Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales and Another (1956) 94 CLR 554, 560.

[17] (1982) 148 CLR 88 at 96.

[18] Queensland Law Society Inc v A Solicitor [1989] 2 QR 331, 335.

[19] AB 22.

[20] Notice of Appeal 1.4 and 2 at AB 24.

[21] [1989] 2 QR 331.

[22] AB 97.

[23] AB 106.

[24] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126.

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